IMPORTANT POINTS
Article 65, Explanation (b) applies only in the case where property is not claimed through the female but independently of woman who has died and was absolute owner. It applies where the female was a ‘limited owner’ and after her death on the property reverting to husband his heirs claim to recover possession.
Order II, Rule 2 CPC will not apply cause of action in previous suit was different from cause of action in present suit.

JUDGMENT :

Arun Mishra, J.

1. The appeal has been preferred by the defendant aggrieved by the judgment and decree passed by the trial court affirmed by the District Court and the High Court. The plaintiffs/respondents who are the sons and daughters of Anandibai, filed a suit for partition of the land comprised in Survey No. 43/2, area 319 acres, 36 guntas situated at village Jawali, Taluk Phaltan, District Satara. The plaintiffs averred that the land was ancestral property initially inherited by Jagdevrao who expired in 1928. He had three wives, namely, Bhagirathibai, Gajarabai and Kamalabai. They died in the years 1927, 1950 and 1992 respectively. Jagdevrao had one son Shankara Rao alias Bajirao who breathed his last on 6.2.1958. His daughter Shakuntalabai died on 1.10.1962. Shakuntalabai died issueless. Anandibai alias Sulochana, sister of Shankara Rao, succeeded to the property. She also died on 20.1.1977. Her property was inherited by the plaintiffs being her sons and daughters. The suit was filed against Chimasaheb who was also son of Jagdevrao. Chimasaheb died on 18.8.1982. Bapu Saheb, appellant No.1 and Vijayantadevi, appellant No.2 are his successors.

2. Plaintiffs averred that the property originally belonged to Parbatrao and Jagdevrao. After death of Parbatrao, his son Bapu Saheb succeeded to his property. After death of Jagdevrao, names of his two sons i.e. Chimasaheb and Shankara Rao were mutated. Shankara Rao had only one daughter namely Shakuntalabai who died on 1.10.1962. She was unmarried. Anandabai @ Sulochana succeeded to her property, being sister of her father i.e. daughter of Jagdevrao. Anandibai had filed a civil suit in the year 1963 for declaration of her share in certain other property. The suit was decreed and she was declared owner of ½ share. It was held that Anandibai @ Sulochana was the heir of Shakuntalabai. The judgment had been affirmed by the High Court. The name of Anandibai was required to be mutated after death of Shakuntalabai. In the year 1976 the plaintiffs came to know that the name of Anandibai had not been mutated over the land in question. Anandibai @ Sulochana filed an appeal in which ex parte order was passed against her. However as the defendants were trying to sell the land as such suit was filed for partition and separate possession.

3. Defendants in their written statement contended that in the previous civil suits filed by Anandibai, the property had not been included as such the suit was barred by Order II Rule 2, CPC. It was also contended that the name of Shankara Rao was mutated during his life-time and upon his death, it was recorded in the name of Shakutalabai. The share of Shankara Rao was partitioned and was allotted to the share of Chimasaheb. Chimasaheb denied the plaintiff’s right in the year 1962 and had been enjoying the property as absolute owner for more than 12 years. Therefore, suit was barred by limitation.

4. The trial court decreed the suit and held the plaintiffs and defendants to be co-owners and in joint possession of the suit land on the date of the suit. The defendants were not in exclusive possession. The right, title and interest of Anandibai @ Sulochana was not denied by Chimasaheb before 16.7.1976. There was no ouster of the plaintiff. The suit for partition could not be said to be barred by limitation. Nor it was barred by provisions of Order II Rule 2, CPC. The appellate court had also affirmed the findings. The second appeal preferred had also been dismissed vide impugned judgment and order, hence the appeal.

5. It was contended by Mr. J.P. Cama, learned senior counsel appearing on behalf of the appellants that the suit was clearly barred by limitation as per the provisions contained in Article 65(b) of the Limitation Act, 1963. It was also urged that the possession was adverse to the interest of the plaintiffs, as they were claiming through Sha